GOP proposal would make a fentanyl overdose first-degree murder in Arizona

Fentanyl dealers linked to an overdose death could face the death penalty under a Republican proposal that critics say will also sweep up drug addicts and send them to death row. 

The legislation from Sen. Anthony Kern, R-Glendale, would expand the state’s first-degree murder statutes to include deaths by fentanyl if the drug is able to be traced back to a specific individual. 

First-degree murder in Arizona is punishable by life in prison or the death penalty.

Criminal justice advocates told the Senate Judiciary Committee on Thursday that Senate Bill 1029 will create murder charges for those who possess the drug — even in cases of accidental death. 

Timothy Sparling, an attorney with Arizona Attorneys for Criminal Justice, asked lawmakers to imagine a middle-class Arizona family with one member who recently had surgery borrowing fentanyl from a friend but leaves on vacation. During their absence, their kids throw a party and a child overdoses on the fentanyl left behind. 

“Is that middle-class Arizonan going to get charged with murder under the bill? The answer is, yes, absolutely,” Sparling said. Cancer patients utilize fentanyl patches for pain management and accidental overdoses by children due to these patches have become a common occurrence. 

Sparling also argued that the bill would not act as a deterrent, but would instead lead to more fatal overdoses because users would become fearful of reporting overdoses due to the new punishment that the law would create. 

“They’re not going to report that somebody is overdosing,” Sparling said. “That is going to lead to more deaths throughout the Valley.”

Fentanyl is a synthetic opioid that is far stronger than other opioids. It has been partially responsible for an increase in the number of drug overdose deaths both nationally and locally, according to the DEA.

Fentanyl in Arizona has seen a boom in recent years. In 2021, the Scottsdale Police Department and Arizona Attorney General’s Office seized a record 1.7 million fentanyl tablets and over 10 kilograms of fentanyl powder during a single investigation. 

During a two-month period in 2021, the Drug Enforcement Agency in Phoenix seized over 3 million fentanyl pills and 45 kilograms of fentanyl powder, and made 40 arrests. 

The drug has also overtaken heroin for the first time as the most-trafficked drug across the U.S.-Mexico border. In Pima County, health officials have begun to distribute test strips to help residents determine if their drugs contain fentanyl.

Kern argued that the state’s Good Samaritan law would not be impacted by the bill and would protect those who call in overdoses. But Sparling disagreed, saying that the bill creates no carve outs or exceptions and merely expands the state’s felony murder statutes to include fentanyl. 

“Everybody in this room knows of somebody that has died of fentanyl, and it is time to put the hammer down,” an agitated Kern, who chairs the Judiciary committee, said in response to Sparling. 

Kern’s bill is one of two fentanyl-related bills he is currently running that Sparling said would be “disastrous” together if passed. Kern’s other bill, Senate Bill 1027, would establish manufacturing fentanyl around a minor younger than 12 as a dangerous crime against children, and, according to some, would decrease the amount in a person’s possession that could land them a charge for intent to sell.

“We would fill our prisons with drug users instead of drug manufacturers,” Sparling said. “As well as people who have watched their friends die.” 

One person who had experience with opioid addiction told the committee about her own experience watching a friend overdose and how Kern’s proposal could have affected her had it been law at the time. 

“Some of us are lucky and make it out alive and some of us do not,” Kara Williams said, adding that she has been sober for seven years. Williams recalled a time when she had been with a group and one of her friends passed out while they were using opioids and she didn’t notice that the friend had stopped breathing. Another person with her noticed and they quickly took them to the shower and turned on cold water. 

“What if my other friend hadn’t noticed she wasn’t ok?” Williams said. “I promise that I never intended to kill anybody during my addiction. I only thought about my addiction and getting high.”

Kern dismissed Williams’ testimony as “irrelevant,” as Williams’ friend did not die during the overdose. 

“I could die driving home,” Kern said. “I believe your testimony is irrelevant.” 

Sen. Justine Wadsack, R-Tucson, similarly dismissed concerns about the bill and its possible impact on people who might unknowingly cause an overdose from the drug, sharing a story of someone in Pima County who caused someone else to overdose when they gave what they thought was a sleeping pill to another person but it ended up being laced with fentanyl. 

“If they’re going to be drug dealers and they don’t know the risk that they’re going to be taking, that is the risk they’re going to be willing to take,” Wadsack said. “They’re committing murder, whether willingly or unwillingly.” 

Kern also dismissed statistics that Arizona’s prison system is one of the fastest growing in the nation and that the state has one of the largest prison populations in the nation. 

“We are in a very troublesome area with this bill and especially when we don’t have county attorneys here to answer questions, when they are the people responsible to charge these cases and prosecute individuals,” Sen. Anna Hernandez, D-Phoenix, said. “I will be voting a hard no on this bill.”

Sen. Christine Marsh, D-Phoenix, lost her son to a fentanyl overdose after he took a percocet pill that he didn’t know was laced with the drug. It led her to champion a bill that legalized fentanyl testing strips. 

“This is a tough bill for me, as I am less than 24 hours away from going to court to do a victim’s impact statement on my own son’s death,” Marsh said, adding that the bill is likely to lead to people getting caught up in the court system. She voted against the bill. 

The bill, like Kern’s other fentanyl bill, was proposed without consulting stakeholders, drawing criticism from Democrats, who felt that involving stakeholders would create a bill they’d be more comfortable with. 

The bill passed along party lines and will head to the full Senate for consideration.